Standing Committee D

[Mr. Eric Illsley in the Chair]

Courts Bill [Lords]

Clause 7 - The commission of the peace for England and Wales

Question proposed, That the clause stand part of the Bill.

David Heath: In a spirit of inquiry, I should like to ask this reforming Government and the reforming Department for Constitutional Affairs why the commission of the peace continues to be issued under the Great Seal. Of course I understand the need for justices of the peace; they have a time-honoured role and title, and I have no wish to remove it. However, what precisely is the purpose of something that no one in the outside world understands—a commission of the peace being issued under the Great Seal? I would have thought that the Department might have addressed that issue, as we are doing away with all sorts of things here, there and everywhere.

Nick Hawkins: I shall be interested to hear how the Minister responds to that. Conservative Members are absolutely delighted that for once the Government have left something alone and are not making a change. As the hon. Gentleman points out, there is the title ''justice of the peace'', and such historic titles have, in many cases, lasted for hundreds of years, because they mean something. Justices of the peace, who have an important title, will be delighted to know that there is a commission of the peace.
 Looking back at the history of this country, I understand that the origin of that title is that justices of the peace the length and breadth of the country were intended to ensure that there was peace, not lawlessness, in their local communities. That is why the commission of the peace has that name—and it is issued under the Great Seal because the Great Seal represents the Crown. We want to ensure that we have a peaceful kingdom.

David Heath: Lest there be any misunderstanding, I should say that I certainly understand the history of the matter, and the need to retain justices of the peace. I just wonder what precisely the hon. Gentleman believes that the commission of the peace issued under the Great Seal is.

Nick Hawkins: We shall hear whether the Minister has anything to add to the explanation that I have given, but I thought that I had just explained my understanding of why the commission of the peace has that name: it was intended to ensure peaceful communities. We Conservative Members are very much in favour of keeping historic titles, and we are
 delighted that on this occasion the Government have chosen to do so.

Christopher Leslie: Good morning, Mr. Illsley.
 The hon. Member for Somerton and Frome (Mr. Heath) is right to point out that we are retaining the commission of the peace. However, I hate to disabuse hon. Members of the idea that we are avoiding our modernising obligations, but in fact there is a change to the commission of the peace. Currently, there are separate commissions for different areas across England and Wales, and the clause creates a single unified commission, which will extend to cover the whole of England and Wales.

David Heath: Steady on.

Christopher Leslie: I am told that the commission of the peace is the authority traditionally issued by Her Majesty that empowers magistrates to act as such. It has existed since 1326—[Interruption]—roughly when the hon. Member for Surrey Heath (Mr. Hawkins) entered political life. The provision is consequential on the abolition of separate local commission areas and on the introduction of the national jurisdiction that the Bill will give to magistrates.
 I have looked into why we need to continue with the concept of the commission of the peace. It is the traditional source of magistrates' judicial authority; also, there may be a legal issue with whether the power to bind over is dependent to some extend on the notion of the commission of the peace. Much research has been done on the subject in our Department, and we felt that at this stage, it would be best to preserve the concept of the commission of the peace—hence the provisions in clause 7, which I hope will now stand part of the Bill. 
 Question put and agreed to. 
 Clause 7 ordered to stand part of the Bill.

Clause 8 - Local justice areas

Nick Hawkins: I beg to move amendment No. 11, in
clause 8, page 5, line 10, at end insert 
 'which are to be coterminous with the boundaries of the relevant local government area.'.

Eric Illsley: With this it will be convenient to discuss the following:
 Amendment No. 118, in 
clause 8, page 5, line 13, at end insert— 
 '( ) No local justice area may include areas which form part of more than one area specified under section 4.'.
 Amendment No. 119, in 
clause 8, page 5, line 13, at end insert— 
 '( ) No local justice area may include areas which form part of more than one area established under Schedule 1 to the Police Act 1996 (c.16).'.
 Amendment No. 12, in 
clause 8, page 5, line 14, at end insert 
 'but may not change the coterminosity of a local justice with a local government area.'.

Nick Hawkins: Thank you, Mr. Illsley. I can now welcome you, and all members of the Committee, properly. I welcome in particular my hon. Friends the Members for Witney (Mr. Cameron) and for Wycombe (Mr. Goodman) and warmly congratulate them on their appointment yesterday to the shadow ministerial team. My hon. Friend the Member for Witney is now shadow Deputy Leader of the House, and my hon. Friend the Member for Wycombe is a shadow Minister for the Department for Work and Pensions.
 Amendments Nos. 11 and 12 would ensure that local justice areas were the same as local government areas. As with the argument that we had a few days ago that courts boards areas should be coterminous with police authority areas, here we need to minimise confusion and overlap. While preparing for this debate, it occurred to me that in drafting amendment No. 12 I might have inadvertently made an error. When I reread the amendment, I thought that it probably should have read ''local justice area'' rather than just ''local justice''. Before the Minister picks that up, I plead guilty that I might have left something out. The amendment would certainly be clearer with the word ''area'' added. 
 The hon. Member for Somerton and Frome will speak to the couple of Liberal Democrat amendments, Nos. 118 and 119, in this group. My reading of those is that they aim for the same thing—avoiding confusion—but we shall hear from the hon. Gentleman in a moment. Even if the Minister cannot accept the amendments as they stand, I hope that he understands what we are getting at. There is no need to change local justice areas so that they cross over local government boundaries, and I hope that he will acknowledge that ours is a genuine attempt to improve the Bill by trying to avoid confusion.

David Heath: I should have said earlier that I welcome you to the Chair, Mr. Illsley; I apologise.
 This group of amendments deals with the idea of keeping a degree of co-ordination and coterminosity between the local justice areas that will be established under the Bill and other areas relevant to the workings of those areas. The hon. Member for Surrey Heath has already explained the basis of his amendments. My only quarrel with him is that he has not defined whether the relevant local government area should be a shire or a district. That could cause confusion in construing his intention.

Nick Hawkins: There was, I hope, a bit of logic to that. Under clause 8(7) as drafted, the term ''local authority'' is defined in paragraphs (a), (b) and (c). That is why my amendments contain no further definition; the clause already includes a definition of ''local authority''. Adding the word ''area'' would be the simplest way of improving the amendment.

David Heath: I understand the hon. Gentleman's point, and I am not trying to pick a quarrel. I do not think that his amendment is precisely right for areas where there are both county and district authorities, but I am not arguing against his intention.
 Amendment No. 118 would ensure that local justice areas were not split between the areas of more than 
 one courts board. That seems eminently sensible. If we are setting up a system for overseeing the administration of courts for a particular area, it does not make sense for a single local justice area to be answerable—or rather, to be of interest—to more than one courts board area. 
 It is a matter of good governance that local justice areas should fall entirely within a single courts board area, to allow for sensible administration. 
 Amendment No. 119 states that the boundary should not cross a police authority area. If we wish to make those areas accountable, and wish to have better co-ordination between the apparatus of justice in its various forms—including the police, the probation service and other bodies that will follow the police authority areas—it does not make sense for a local justice area to cross the boundaries of a police authority area. 
 Whether or not my amendments are accepted, local justice areas will, in practice, fall within a single police authority area and a courts board area. It would be better if that were explicit, rather than implicit. I would be concerned if there was a local justice area that straddled borders, because that would create confusion and add to the lack of local accountability and transparency in the operation of those bodies. I hope that the Minister will accept my amendment.

Christopher Leslie: I commend the hon. Member for Surrey Heath for his characteristic modesty in commending his colleagues on their promotion in the shadow reshuffle, but failing to mention that he too has been promoted, to shadow Solicitor-General. I congratulate him.
 We have four substantive amendments before us. As a consequence of clause 8, we will abolish commission areas from statute, and replace petty sessions areas with local justice areas. We will introduce a transitional provision confirming that local justice area boundaries will, in the first instance, be the same as those of existing petty sessions areas. 
 The hon. Member for Surrey Heath tabled amendment No. 11, which would require the Lord Chancellor to make local justice areas coterminous with the boundaries of the relevant local government areas when he divides up England and Wales. The hon. Member for Somerton and Frome pointed out one of the issues that had occurred to me concerning the definition of the term ''relevant local government area''. 
 I acknowledge the comments of the hon. Member for Surrey Heath about the definition as set out in subsection (7). His amendment does not distinguish between a county council area and a district council area—although that is a drafting point, so I will not dwell on it. It is important that we make it clear that the local level is the foundation building block of the local justice area. Will the local justice areas be coterminous with the local government unit or with one of the 43 police authority areas? All those boundary issues are important. 
 The amendment is undesirable, given that local justice areas will replace petty sessions areas, and at this stage we do not wish to disturb the underlying structure of existing petty sessions areas boundaries. That is why we will bring forward a transitional provision confirming that the boundaries of the new local justice areas will be the same as those of the petty sessions areas on commencement. 
 Amendment No. 12 would prevent the Lord Chancellor from changing the coterminosity of a local justice area and a local government area when making an order to alter local justice area boundaries under subsection (4). Unless the term ''relevant local government area'' is clearly defined, there are difficulties with the workability of the amendment, and given what I have already said about amendment No. 11, I do not believe that that would be the correct approach. 
 Amendment No. 118, tabled by the hon. Member for Somerton and Frome, would ensure that 
''No local justice area may include areas which form part of more than one''
 courts board 
''area specified under section 4.''
 There are difficulties with that approach. Although the amendment suggests that courts boards boundaries are fundamental and inalienable units that should not be tampered with, the local justice areas are the first building blocks of the system. The amendment is undesirable, because it seeks to put the cart before the horse. The petty sessions or local justice areas are fundamental to all aspects of the magistrates courts system, whereas those of the courts boards are part of an administrative structure, through which the administration of the courts—not only magistrates courts—is enhanced. In determining a courts board area, consideration should be given to ensuring that petty sessions and local justice area boundaries are not compromised, and vice versa. Many hon. Members would want to ensure that we saw that point through.

David Heath: I think that the Minister is agreeing with me that the local justice areas should be entirely within a single courts board area. All he is saying is that one is established before the other. Would he find acceptable an amendment to the definition of the courts boards areas that ensured that they covered a whole number—an integer—of local justice areas? If that were done, there would not be the problem of local justice areas straddling the borders of courts boards areas. I think that he and I would agree that that would not be conducive to good administration.

Christopher Leslie: That may well be the effect of the final product, as we move from the transitional phase, during which we simply replicate the petty sessions areas, to the new system. However, other matters must be taken into account when considering courts boards areas, given that those do not just relate to magistrates courts issues. We must consider that in more detail, although that is not to say that there should not be widespread consultation on such matters. Subsection (6) already provides for consultation with the relevant courts board, in the event that boundary changes were
 to be given further consideration after the first transitional phase.
 Amendment No. 119, tabled by the hon. Member for Somerton and Frome, would ensure that 
''No local justice area may include areas which form part of more than one area established under Schedule 1 to the Police Act 1996''.
 That is similar to amendment No. 118. The intention behind amendment No. 119 is that such an area should not straddle more than one criminal justice service area, apart from in London, where there are the classic anomalies of the City and metropolitan boundary areas. That is the current position with petty sessions area boundaries and it will also apply initially to those of local justice areas. We expect that such boundaries will be included within those of a criminal justice service area. However, we do not want to commit to ensuring that in the Bill. It is important to remember that magistrates courts also hear civil and family cases, not just criminal cases. The organisation of local justice areas is not solely reliant on the needs of the police and the Crown Prosecution Service, and to tie it to the considerations of criminal justice service areas would be, in a sense, to pre-empt and negate considerations that may be necessary in respect of civil and family cases. 
 Given the wider responsibilities of the magistrates courts system, it would be wrong at this stage to include such restrictive amendments in the Bill. However, I assure Committee members who have raised particular points that if we can keep the boundaries structures simple and clear, that will be our intention. I understand entirely that the amendment was tabled to try to ensure as great a level of coterminosity as possible, but I hope that it will, for the time being, be withdrawn.

Nick Hawkins: I think that the Minister understands entirely what we are aiming at. I do not want to prolong the debate, but I would have preferred it if something along the lines of my amendments and those of the hon. Member for Somerton and Frome were included in the Bill. I understand that we are not really falling out on an issue of principle. We are simply talking about the mechanics of the Bill. The Minister has given some helpful reassurances, which are now on the record. In the light of those, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 8 ordered to stand part of the Bill. 
 Clause 9 ordered to stand part of the Bill.

Clause 10 - Appointment of lay justices etc.

Nick Hawkins: I beg to move amendment No. 13, in
clause 10, page 6, line 13, at end insert 
 ', and the rules and the contents of the training courses shall be laid before both Houses of Parliament.'.
 I hope either that the Government will not resist this amendment on such an important matter, or, even if they feel that they must, that they might table a similar Government amendment. We on the Conservative Benches think that it is important that 
 there be some scrutiny by both Houses of Parliament of how lay justices are to be trained. 
 Earlier in our proceedings reference was made to the fact that in this country we are tremendously fortunate to have about 96 or 97 per cent. of criminal cases dealt with by amateur volunteers—people who devote their lives to public service as justices of the peace. Without their dedication, we would not have such a highly regarded legal system. When I talk to people in other countries, they are amazed that we are fortunate enough to have a system that relies so heavily on volunteers, which of course can save Governments of any party a huge amount of money—it would be much more expensive for the taxpayer to transfer to an entirely professional judiciary. 
 Although we have volunteers who do all that work as justices of the peace, Parliament needs to have sight of the content of their training courses. I cannot see why there should be any opposition to that. We are saying not that Parliament should interfere, but simply that it should see what is on the syllabus. 
 I used to have great concerns about a completely different matter many years ago, which was how teachers were trained. I was suspicious about some of the things that were in the teacher training college syllabuses, but, fortunately, when we were in government my right hon. Friend the Member for South-West Norfolk (Mrs. Shephard), then Secretary of State for Education, looked at what was in the syllabuses and got a lot of the political correctness taken out. However, that is a different matter and we are not talking about that here. We are talking about Parliament having a view about what is going to be in the syllabus, as I have called it, for training lay justices. The point is shortly stated, but it is nevertheless an important one and I hope that the Government will not seek to resist the amendment.

Christopher Leslie: Subsection (4), as the hon. Gentleman has rightly pointed out, enables the Lord Chancellor to make rules about lay justice training. The amendment seeks to impose an unnecessary restriction on the potential ability of the Lord Chancellor to train lay justices. I am concerned about the amendment. Although I can understand the natural curiosity of the hon. Gentleman, he is insisting that the contents as well as the rules of the training courses should be laid before both Houses of Parliament, which is a slightly worrying suggestion to make. Doing so would be a little excessive and perhaps an unprecedented level of parliamentary scrutiny. We obviously want to see training for lay justices up and down the country, but we also feel that the basis of that training should have a degree of independence.

Angela Watkinson: I wonder whether I could press the Minister on the eligibility of those who are trained. The high cost of training magistrates must be borne in mind, and there needs to be an assurance that a significant number of years of service could be had from a trained magistrate to justify the cost of that training. However, I have heard of cases where older people have been refused on the ground of age, and it
 would be a pity if their experience and wisdom, which come with age, were lost to the magistracy.

Christopher Leslie: As I get older and wiser about these matters, I realise and appreciate the benefits that can come from age and experience. I have had about 15 or 16 days' experience in the field of courts and the wonderful world of the Lord Chancellor, and I feel that great experience should never be thrown away lightly. I will look at whether there are any bars to training that unnecessarily discard experience. I am sure that the system does not do that, but I hear what the hon. Lady says.
 There needs to be a degree of independence in the training process. The Judicial Studies Board manages the training of lay justices on behalf of the Lord Chancellor, and it does so well. It is an important aspect of the magistracy's judicial independence that such training should be seen to be free from outside—and particularly political—interference. 
 Certain training courses need to be prepared quickly—perhaps in response to legislative change—and the amendment would delay or fetter the process of changing or preparing them: their content would need to be laid before Parliament on every such occasion. I am not aware of the contents of training courses in any other field of public life needing to be laid before Parliament. 
 The hon. Member for Surrey Heath says that he does not wish to interfere with the content of such courses, but if we were to have a provision stating that their contents should be laid before Parliament, that would implicitly suggest that Parliament may wish to debate the contents, or even to give approval of them, and that would be the wrong avenue to go down. Because of those concerns, I hope that the hon. Gentleman will withdraw the amendment.

Nick Hawkins: I am disappointed with the Minister's response because having the contents of the training laid before Parliament is an important matter. We might need to return to the matter on Report. The Minister helpfully suggested that he will look at the important point raised by my hon. Friend the Member for Upminster (Angela Watkinson), and I hope that he will also continue to keep this matter in mind, so that at the same time that he is exploring my hon. Friend's concerns about older people being considered as magistrates, he will look again at whether it would do any harm for the Bill to state that the contents of the training should be laid before Parliament. That is not an excessive request, but as I do not wish to prolong the debate, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

David Heath: I welcome the capacity to allow greater flexibility in the use of lay magistrates between local justice areas—as those areas are to be called—but what is the process for the arrangements under subsection (3) that allow a lay justice to preside over or act in an area to which he or she is not assigned? Will the Lord Chancellor simply write a letter to that
 effect, or is there a more complicated process? In clause 16, there is a requirement to notify the Keeper of the Rolls for the local justice area of a permanent assignment, but is that the case for a temporary assignment? What are the procedures that the Lord Chancellor would expect to have in place to make these assignments—to license a lay justice to act in an area to which he or she is not assigned?

Christopher Leslie: The hon. Gentleman raises an interesting and important point about the process by which lay justices will be assigned to particular areas. Clearly, there will be a change, in that there will be greater flexibility of assignment, given the abolition of particular local commission of the peace areas and the fact that lay justices will be able to act in any local justice area. However, certainly under subsection (3), and not least in conjunction with clauses 43 and 44, we intend to exercise the arrangements in accordance with many of the current procedures used by the Lord Chancellor.
 Magistrates would generally continue to sit in their local area, and the wider jurisdiction would only be used on proper conditions, including the magistrates' agreement and the business needs driving the courts system. If there are technical paperwork aspects that I am neglecting, it is simply because I am not intimately familiar with the processology of how magistrates would be assigned. I have given the principle that will continue to be used. Obviously, we do not wish to cause disruption in where a magistrate sits, particularly if the change is against their will. 
 The clause re-enacts several provisions in the Justices of the Peace Act 1997, and puts on to a statutory footing for the first time the requirement on the Lord Chancellor to assign magistrates to a local area. The clause is a step forward. It is intended to preserve, and perhaps even strengthen, the statutory position of the bench in relation to the community and magistrates working in local justice areas. Putting the provisions in the Bill gives strength to the foundations of the appointment process. If the hon. Gentleman wishes, he can raise points—or I could follow up on his points, if he has any more to make—in correspondence with me.

David Heath: I was not trying to be clever and catch the Minister on the hop with my question; it simply seems that there is a lacuna in the Bill in relation to setting out the exact procedures. That may not need to be done in primary legislation, but clear procedures need to be involved, because nothing would be more certain to cause upset and difficulties in a local government area than some magistrate from outside suddenly appearing to hear a choice case, or something like that.
 I just want to be reassured that procedures for the new way of doing things have been envisaged, and that they will ensure that the local bench know about, and are party to, what is going on. Those procedures should perhaps allow for consultation along the way, and ensure that there are no sudden lurches in personnel that would disrupt the principles of the lay magistracy as we know them. I am perfectly satisfied 
 that the Minister will address the issue, but he might also like to consider whether it would be appropriate to publish clear rules of procedure on the subject at an early stage so that everyone knows what is entailed, because I do not think that it is absolutely clear. 
 Question put and agreed to. 
 Clause 10 ordered to stand part of the Bill.

Clause 11 - Resignation and removal of lay justices

David Heath: I beg to move amendment No. 120, in
clause 11, page 6, line 17, leave out 'Chancellor' and insert 'Chief Justice'.

Eric Illsley: With this it will be convenient to discuss the following amendments:
 No. 124, in 
clause 22, page 10, line 37, leave out 'Chancellor' and insert 'Chief Justice'.
 No. 125, in 
clause 22, page 11, line 9, leave out 'Chancellor' and insert 'Chief Justice'.
 No. 126, in 
clause 23, page 11, line 12, leave out 'Chancellor' and insert 'Chief Justice'.
 No. 127, in 
clause 24, page 11, line 18, leave out 'Chancellor' and insert 'Chief Justice'.
 No. 128, in 
clause 24, page 11, line 27, leave out 'Chancellor' and insert 'Chief Justice'.

David Heath: This is a series of probing amendments on a subject that the Minister must have known would arise at some stage in our proceedings. The point of the amendments is to try to divine what exactly the Department had in mind about the future role of the Lord Chancellor in relation to judicial appointments. I put the amendments forward not as a comprehensive list of all the places where one could substitute ''Chief Justice'' for ''Chancellor'', but simply as test cases to stimulate debate on the subject.
 We are told that the Lord Chancellor will bow out of the process of judicial appointments. I welcome that. There have been strong arguments for a long time for the Lord Chancellor not to combine his various roles. There will be debates on the matter and proposals will be discussed. However, we are debating a Bill that will create a new raft of judicial appointment functions for the Lord Chancellor at a time when he is only Lord Chancellor for the interim period. His official title is included in the Government list and will change. 
 Judicial appointments are best left to the judiciary and, under my proposal, the person who will nominally be the head of the judiciary will be the Lord Chief Justice. It is open for the Minister to say that I have interpreted matters wrongly and that the head of the judiciary will continue to be the Lord Chancellor. I hope that he will not say that. The Minister could say that I had got it wrong and that another judicial personage will be the appropriate head of the magistracy. I should be content with that, 
 but it would be helpful to know the Government's thinking. 
 It is unacceptable for us to pass into law a new statute, which runs entirely counter to the Government's declared policy in such matters. I may have more to say when I have heard the Minister's reply. I do not want to labour the point now, but to explore his thinking about who should be making such appointments.

Nick Hawkins: I entirely concur with the hon. Member for Somerton and Frome.

Christopher Leslie: I do not. [Interruption.] I appreciate the succinct reply of my hon. Friend the Member for Ellesmere Port and Neston (Mr. Miller).
 The amendments would pre-empt decisions based on the outcome of the consultation paper on the independent judicial appointments commission, with which members of the Committee will be intimately familiar and which was announced at the time of the Cabinet reshuffle. It will be issued on 14 July and will explore all the points that the hon. Member for Somerton and Frome raised, such as whether judicial office holders should be appointed by the commission. It would be premature for me to form views on the outcome of the consultation process in advance, although clearly the principle of reducing the level of political input into the selection process between candidates for the judiciary is an aim with which the hon. Gentleman agreed. I have not heard disagreement with that concept.

Gareth Thomas: I understand what my hon. Friend is saying. None the less is it the Government's position that, although the precise replacement for the Lord Chancellor has yet to be determined and is the subject of consultation, the Lord Chancellor will not be involved in judicial appointments? Is there not some merit in the amendment because of an anomaly? If the Lord Chancellor cannot appoint, he should not be allowed to sack. However, different considerations may apply to lay justices as opposed to other members of the legal profession.

Christopher Leslie: My hon. Friend has asked a reasonable question, which I imagine will be covered in the consultation paper when published. I am not particularly sure whether the proposal of the hon. Member for Somerton and Frome about the Lord Chief Justice is desirable. I am not even sure whether the Lord Chief Justice would be keen on the concept. We shall have to study the matter when the consultation paper is published.
 The hon. Gentleman slightly overstates his case when he talks about the Bill creating new appointment roles for the Lord Chancellor. The Bill simply re-enacts several of the Lord Chancellor's existing appointment powers. It may well be that there are questions to do with accountability that must be brought out in the consultation paper, but we will have to wait and see.

Nick Hawkins: The Minister says that we will have to wait and see, but he will concede that it is bizarre that he is resting his argument on the consultation paper that is not due to be published until four days before Parliament rises for the recess. None of us know what the contents of it will be. The Minister may have some idea, because I am sure that in his short time in his new Department he has been involved in discussions about the contents of the consultation paper. However, we do not know what its contents will be; they remain in the ether. Given that the Minister is now under pressure from his own Back Benchers, as well as from the Conservative Benches and, in particular, the Liberal Democrats who tabled the amendment, will he concede that it may be wiser to take cognisance of the unhappy state that we are in of not knowing what will be in the consultation paper?

Christopher Leslie: I should be happy to take cognisance of the state that we are in. There is a great deal of eagerness—rather than unhappiness—in our anticipation of the consultation paper. Given the path down which we have stated we will go, that is proper and reasonable. Several questions must be resolved. I do not want to pre-empt the consultation process. Just because publication will be on 14 July does not mean that the consultation period will end a week later.
 The consultation will continue until November, when there will be ample opportunity for all hon. Members, and others outside this place, to have an input, consider and debate the merits of different aspects of the creation of an independent judicial appointments commission. As the Minister who has been involved in much of this process, it would not be right for me to pre-empt the views expressed in the consultation process. That is why I ask the Committee to resist the amendments.

Boris Johnson: I wish to follow the hon. Member for Somerton and Frome and probe the Minister a little further on one point. Will he guarantee that, if we approve the clause, we will not allow whoever emerges as the successor to the Lord Chancellor to be an exclusively political figure in the removal of the magistrates? That is what we are talking about—removing magistrates from office. It would be bad and dangerous if whoever took over the office of Lord Chancellor under clause 11 was an exclusively political figure.
 In ending the anomaly of the Lord Chancellor, the Government are trying to do something sensible. Why should a figure be judicial and political at the same time? If it is proposed under clause 11 that the successor to the Lord Chancellor should be the Secretary of State for Constitutional Affairs and that he will have the power to remove lay justices, that would be a serious matter. An exclusively political figure, with no judicial dimension to his office, would have the ability to remove magistrates. That would be wrong and a gross constitutional impropriety. Is the Minister willing to rule out the possibility that, when the Bill refers to the ''Lord Chancellor'', that may at some future time designate the Secretary of State for Constitutional Affairs?

Christopher Leslie: I am glad that that matter is beginning to come to light and that many hon. Members are thinking through the current anomalous situation of a twin-hatted Lord Chancellor with judicial and political roles. One of the points that must be remembered is that all appointments are made by the Lord Chancellor not in a judicial capacity, but as a Minister of the Crown. Most of the appointments are already undertaken under what may be defined broadly as political arrangements. No change is proposed to the current system under clause 11. The current arrangements will be continued.
 I respect and understand the point that the hon. Gentleman is making. Just as in any consultation paper on judicial appointments, matters of removal, discipline, wayward justices and so forth must be dealt with. I do not want to pre-empt the contents of that consultation paper before it is published; these things should be announced in the normal way. Clearly, the hon. Gentleman has raised an important point: we cannot examine the appointments process in isolation from what would happen in terms of the removal of those playing a part in the judiciary. I have no doubt that some of those points will be touched on in the consultation paper. We have shared our concerns about the appointments process, and they will be part of the consultation process. It would not be right for me to go into too much detail at this stage, and I hope that the amendment will be withdrawn.

David Heath: I am grateful for the Minister's response as far as it goes. He expressed pleasure at the fact that some hon. Members are now thinking seriously about the position of the Lord Chancellor and the triple-hatted nature of his present incumbency. Some of us have been raising that issue for a long time, and certainly when the Government resisted any attempt at change by saying that it was perfectly acceptable for the Lord Chancellor to have multiple roles. We have been convinced for some time that that was an untenable position, and one that needed to be addressed.
 The Minister's response raises several problems. We are required to vote into law today proposals that re-establish the position of the Lord Chancellor not just to appoint, but to remove justices from their posts, but the fact that we must wait for the judicial storming of the Bastille on 14 July before we even know the Government's thinking is—and I do not want to overdo it—an abuse of process. At the time of the Government's announcement, I said that the best thing that they could have done was to pull back the Bill and wait until they knew what they were doing. The hon. Member for Henley (Mr. Johnson) is right: by default, the role will fall to the Secretary of State for Constitutional Affairs. If the position of Lord Chancellor is no more and nothing else changes, his successor in title will be the Secretary of State. 
 We accept that the Government are serious about considering a new judicial appointments commission, or something similar. However, that prompts a new question. There will be a power to remove a justice from his office by instrument on behalf, and in the name, of Her Majesty. How will that instrument be 
 constituted in the absence of a Minister of the Crown to lay it before Parliament? In what way will the judicial appointments commission, as it is formulated, exercise its powers of appointment to and removal from office? Those questions need to be addressed as part of the consultation process.

Nick Hawkins: As the hon. Gentleman knows, I entirely agree with his points; I am sure that the Minister will take them seriously. By the time that we have all seen the consultation paper, the Bill will not have completed its stages—it is likely that the Bill will be on Report in our two-week sitting in September or in the autumn—so there will be time for the Government to table amendments clarifying the position in light of the consultation paper. Does the hon. Gentleman agree that it would be enormously helpful if the Minister told us that he already firmly intends to amend this part of the Bill in light of the consultation paper?

David Heath: That would be helpful. Unfortunately, I do not think that it is going to happen.

Christopher Leslie: I am being prompted to pre-empt the results of the consultation by inserting amendments into the Bill before we know what the results of the consultation will be. Although the hon. Gentleman criticises the Government for moving too speedily when he regards consultation has not having been thorough, he is encouraging us to move in such a way in this case.

David Heath: I am not accusing the Government of being too speedy, but of leaving it too late and then doing everything in a rush. That has resulted in a muddle, which is par for the course.
 My difficulty is not that the consultation process should have been completed before the Bill commenced its passage. I understand that there are complications and areas that will need to be addressed. However, given that the one thing about which we are absolutely clear, irrespective of the mechanisms involved, is the Government's intention for judicial appointments to cease to be the province of the Lord Chancellor, to pass into legislation a duty that falls exclusively on the Lord Chancellor seems to be to take obstinacy a little too far. There was not even going to be a Lord Chancellor until somebody consulted the rule book of the House of Lords and discovered that there needed to be one. 
 I would be much happier if the Minister were to come back on Report not with the finished product—I accept that he cannot do that; the consultation process will not be complete—but at least with a transfer of the function to the judiciary in some form. That would put the Bill into the correct form for it to be later amended, as it will inevitably have to be in the light of consultation and the final arrangements for judicial appointments. At the moment, it is in the wrong form. It has the wrong structure in that it places the duties in the hands of a Minister, a member of the Cabinet and the presiding officer of another place.

David Kidney: I am having trouble following the hon. Gentleman's argument. If the Bill did not exist, the Lord Chancellor would be the person to appoint and sack magistrates. We could therefore
 leave things as they are. I note that the hon. Gentleman did not propose any amendment to clause 10, which renews the Lord Chancellor's power to appoint magistrates in the future, presumably because the hon. Gentleman assumes that the Lord Chancellor's power will eventually be taken over by a judicial appointments committee. Therefore, we should be discussing the valid point made by the hon. Member for Henley about sackings, not appointments. As it would require an Act of Parliament to abolish the position of Lord Chancellor, would that not be the right time—after all the consultations had taken place—to debate where his functions should go?

David Heath: I thank the hon. Gentleman for saying that the hon. Member for Henley, in supporting me, has a valid point even though I did not have one in the first instance. He obviously expresses it better than I do.
 I made it plain that I was putting specimen charges before the Committee to try to ascertain the Government's intentions. I do not think that I have done a very good job of finding out what they plan to do, because they simply have not told us. The Minister says that we shall learn all on 14 July—I cannot wait. Similarly, I cannot wait for the Bill in the next Session of Parliament that will undo what we are busy doing today. It is an odd way of making law. We can do better than this and we would do better if the Government had a coherent view about constitutional reform and built their legislation into a comprehensive framework. However, they always fail to do that, and that is why we find the anomalies that make nonsense of the process of scrutiny in which we are engaged. However, despite all that, I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Nick Hawkins: I beg to move amendment No. 15, in
clause 11, page 6, line 23, after 'satisfied', insert 'on reasonable grounds'.
 The amendment would simply introduce a test of reasonableness. It is a small amendment, but we think that it ought to be made clear that the Lord Chancellor should have reasonable grounds for believing that lay justices are 
''declining or neglecting to take a proper part''
 in the exercise of their functions as justices of the peace. It is a small point, but it is important that the Bill should not say simply, ''if he is satisfied'', but that he should be satisfied ''on reasonable grounds''. I hope that the Government will not resist such a small and eminently reasonable amendment.

Christopher Leslie: I hate to dash the hon. Gentleman's hopes, but I have several reasons for not accepting it. The first point, which is not to be dismissed lightly, is that the Lord Chancellor, like all Ministers, should always act reasonably. In this case, the Lord Chancellor should always have good reason for removing lay justices, and he should not do so lightly or frivolously. The ordinary principles of administrative law require him not to act
 unreasonably in taking such decisions. As I recall from the many happy hours that I spent debating the Local Government Bill, the Wednesbury principles of reasonableness apply to public administration, so the amendment would add little, if anything.
 Secondly, I am advised by those helping to draft the legislation that the amendment would add unnecessary terminology. That would have the further disadvantage of implying that, whereas reasonable grounds are required for dismissal in this type of case, they may not be required in other cases. I would be concerned that, because the phrase ''reasonable grounds'' was not included for other decisions, other could infer that reasonability was less desirable when they were made. That might seem a small point, but I am advised that it is significant. 
 I hope that those two rather robust arguments will have persuaded the hon. Gentleman to withdraw the amendment.

Nick Hawkins: I think that the Minister is being a little unreasonable, but I shall not pursue the point. However, he and those who advise him must be aware that the reasonable test has been applied to the actions of Secretaries of State and Ministers in many areas of legislation. I have been involved in a number of Standing Committees, as has the hon. Member for Somerton and Frome, and we have seen such phrases in Bills.
 The fact that all Ministers are under a general duty to act reasonably under the Wednesbury principles does not mean that reasonableness cannot be included in legislation. It is often to be found in legislation, and there is no reason why it should not be included in the Bill. However, I shall not waste the Committee's time by pursuing the point now. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 11 ordered to stand part of the Bill.

Clause 12 - The supplemental list

Nick Hawkins: I beg to move amendment No. 16, in
clause 12, page 6, line 27, at end insert 
 'and a copy is to be laid in the Library of the House of Commons and the copy laid there is to be regularly updated as appropriate.'.
 This is a small amendment. It would be helpful if Parliament had a copy of the supplemental list. I see no reason why an updated copy of the list should not be placed in the Library of the House. It is only a small point, but I hope that the Minister will understand that we are trying to improve the provision of information, and the opportunity for parliamentary scrutiny. I hope—at this time of day, without much optimism—that the Minister might not resist the amendment.

David Kidney: A supplemental list already exists and this is a measure to preserve it. Can it already be found in the House of Commons Library?

Nick Hawkins: I do not know, although the Minister will no doubt tell us.
 When I read the Bill, however, it struck me that keeping the list in the Library and updating it would be a helpful way of increasing parliamentary scrutiny. I shall listen with interest to his reply.

David Heath: I feel that the hon. Member for Surrey Heath is losing heart, which is a sad state of affairs at this time on a Tuesday morning. I cannot believe that the supplemental list will be essential reading for every Member of Parliament, but will the Minister tell us whether it is included in at least one reference volume? I imagine that it probably is and that it is not a discrete item.
 Am I right in thinking that the posts of Clerk of the Crown in Chancery and permanent secretary in the Department for Constitutional Affairs are held simultaneously by the same individual? If so, questions about the supplemental list would presumably be open to direct parliamentary scrutiny.

Christopher Leslie: To answer the hon. Member for Somerton and Frome, my understanding is that the current Clerk of the Crown in Chancery is, indeed, one and the same person as the permanent secretary in the Department for Constitutional Affairs. Indeed, I spoke about the amendments with him yesterday, and he was most interested to know that we were going to discuss them.
 The hon. Member for Surrey Heath wanted to make a short and interesting point, but it now means that I must describe the supplemental list and elaborate on some of the existing arrangements. Section 7 of the Justices of the Peace Act 1997 provides that the names of lay justices who have retired, or stood down due to age or ill health, can be entered on a record known as the supplemental list, which many former justices of the peace regard as a roll of honour. The list is kept by the Clerk of the Crown in Chancery at the headquarters of the Department for Constitutional Affairs. Each commission area has a keeper of the rolls, who holds a record of all serving and supplemental justices resident in their jurisdiction. The Bill maintains the office of keeper of the rolls, but defines its responsibilities in terms of groups of local justice areas, because commission areas will no longer apply. 
 I am afraid that the amendment is unnecessary and slightly impractical. It is the responsibility of keepers of the rolls to inform the secretary of commissions when a person on the supplemental list dies. Unfortunately, keepers must rely on the deceased's relatives to notify them, and many deaths go unrecorded. Understandably, even relatives who know of the procedure often overlook what is a relatively minor matter in comparison with the more pressing issues that they face. With the best will in the world, therefore, it would be slightly difficult to keep a completely up-to-date copy of the supplemental list available. That would negate one of the main intentions behind the amendment. 
 Furthermore, we consider it inappropriate and unnecessary for Parliament to hold a copy of the list, because it is essentially a record of local appointments. We do not retain lists of comparable voluntary 
 workers in, for example, the Territorial Army or the Royal Naval Reserve. Nor do we retain lists of school governors, special constables or lifeboat crews, and I can see no valid reason to make an exception for former lay justices. Given the sheer scale of the task, the length of the list and the difficulty in ensuring that it is regularly updated, the amendments would be particularly burdensome. Few hon. Members may have looked at the supplemental list, but I am sure that it will be accessible, under normal freedom of information arrangements, to those who want to see it in the bowels of the Department for Constitutional Affairs building. I hope that Committee members will not require it to be put in the House of Commons Library.

Nick Hawkins: The Minister may have misheard me. I did not claim that the matter would be interesting, although I certainly said that it was a small debate. Nevertheless, it was useful for those points to be put on the record. Perhaps the permanent secretary is still Sir Hayden Phillips, with whom I had the great pleasure of working when he was permanent secretary at the Department of National Heritage, when my party was in government and I was parliamentary private secretary there. I am delighted to know that the position of Clerk of the Crown in Chancery is in such safe hands. It was helpful for the minister to put the full position on the record. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 12 ordered to stand part of the Bill. 
 Clause 13 ordered to stand part of the Bill.

Clause 14 - Removal of names from the supplemental list

David Heath: I beg to move amendment No. 121, in
clause 14, page 7, line 15, at end insert— 
 '(3) If the Lord Chancellor directs the removal of a person's name under subsection (2), he shall give his reasons for so directing.'.
 Again, this is partly a probing amendment to help us to understand under what circumstances the Lord Chancellor might direct the removal of a person's name from the supplemental list. However, it is also a little more than that. Under natural justice, a person should be entitled to know why they have been removed from what is essentially an honorific list. Subsection (1) contains a clear requirement for that to happen if a person 
''ceases to be a justice of the peace.''
 Subsection (2)(b), however, appears to be entirely discretionary on the part of the Lord Chancellor, unless it is intended to qualify the first provision. However, I do not think that it is. Perhaps the Minister could explain under what circumstances the Lord Chancellor would exercise his powers to direct the removal of a name and why he should not be required to give a reason for doing so, given that there are, perhaps understandably, none of the qualifications that apply to the removal of a lay justice from office. Clear grounds must be set out in statute. However, no such grounds are set out in the Bill, which is rather fuzzy as it is currently worded.

Christopher Leslie: We have touched briefly on the wonderful issue of the supplemental list. The hon. Gentleman's amendment may have arisen from a misunderstanding. I shall thrill the Committee with a detailed explanation—which I hope is clear and can be followed—of why that is so.
 Under clause 13(4) a magistrate may be placed on the supplemental list at his own request. He may do that for various reasons, including, for example, the illness of a close relative. Under clause 13(5) a magistrate may be placed on the list by a direction from the Lord Chancellor on the grounds of incapacity. 
 Clause 14(2) provides for the removal of names from the supplemental list under the Lord Chancellor's direction, but only if the person's name is on the list as a result of clause 13(4) or (5). However, the removing of a name from the list is not a negative action. Clause 14(2) provides for a change in circumstances, which may mean that the person on the supplemental list would be able to serve again. The circumstances of a person whose name has been placed on the list under clause 13(4) or (5) may change. For example, a person who was previously incapacitated may regain their health and be able to serve again as a magistrate. Clause 14(2) ensures that the Lord Chancellor could allow such a person to continue their valuable service as a magistrate. We need that provision; without it a magistrate would, under clause 12(2), be prevented from serving. 
 It is unnecessary to provide for the Lord Chancellor to inform a person whose name was being removed under clause 14(2). He could make such a direction only if the person concerned were content for his name to be removed from that list. That would follow a request from that individual. I hope that my explanation gives comfort to the hon. Member for Somerton and Frome, and that he will withdraw his amendment.

David Heath: I am grateful for that explanation. I still think that the clause is not terribly transparently worded. I assume, therefore, that there is no capacity to remove someone from the supplemental list for misconduct, misbehaviour or permanent incapacity.

Boris Johnson: I do not understand what the purpose of the supplemental list is. Does it list people who are no longer allowed to serve or people who have served and are now receiving a mark of distinction? What is its purpose?

David Heath: The hon. Gentleman has got to the nub of the issue. The supplemental list is a sort of retirement home for magistrates who are, in a variety of ways, past their sell-by dates. When it is honorific, it is likely to concern someone in the other place, but I should not say that.

Andrew Miller: I wish to defend the honour of my hon. Friend the Member for Lewisham, East (Ms Prentice) who is a member of the supplemental list. That is an outrageous slur on her character. She is not the only Member of Parliament on it. People in other occupations have gone on to the list because their current occupation debars them. If my hon. Friend retired from her seat,
 she would be able to continue as a member of the bench.

David Heath: I was coming to that precise point. The list has two aspects: one is a way of removing somebody so they are not allowed to serve; the other is a way of keeping somebody in abeyance while they temporarily cannot serve, so that they can return to the active bench at the end of that period. The wording of the clause does not make that distinction in any way, and I do not apologise for the misunderstanding that I was guilty of, because it is possible to construe the provision in exactly the way that I did. The Minister may like to look at the matter again.
 It is clearly necessary to have a method of getting someone back on the active roll, as it were, under appropriate circumstances. That is what the Minister is trying to ensure. Can I assume that there is no provision for removing someone from the supplemental list who should jolly well not have been on it at all as they were unfit to practice as a magistrate under any circumstances?

Angela Watkinson: Further to a point that I made earlier, there seems to be a link between people reaching the age of 70 and going on to the supplemental list. I do not include the hon. Member for Lewisham, East in that bracket. There is an implication in clause 13 that being 70 automatically precludes somebody from performing a magistrate's duties. The vast majority of people aged 70 are still in full possession of their faculties, and therefore the vast majority of magistrates are, too. It would be a great mistake to put them out to grass purely for that reason.

David Heath: The hon. Lady raises a separate point and one that has troubled people for some time—the question of when people should step down from judicial appointments of any sort when there is an age limit. There has been a lot of regulation about the statutory age of retirement for judicial appointments. Can the Minister comment on that matter?

Christopher Leslie: Believe it or not, I am assured by officials that the provisions that we are dealing with are a lot clearer that the current arrangements. The key is to bear in mind clause 12(2). That relates to the purpose of the supplemental list—and, indeed, to the point that was raised by the hon. Member for Henley. Further to his point concerning the removal of lay magistrates, the provisions of clause 11 would provide the opportunity to remove people for other reasons. The supplemental list is not the main vehicle to do that. Rather, it is a roll of honour for those who are no longer practising.

David Heath: I am grateful to the hon. Gentleman. I now understand that, if somebody does awful things, they are not removed from the supplemental list, but from the lay magistracy under the provisions of clause 11. I now understand the Minister's point and his opaque legislation. We have taken far too long on the rather minor issue of the supplemental list, so I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 14 ordered to stand part of the Bill. 
 h3Clause 15

Lay justices' allowances

Nick Hawkins: I beg to move amendment No. 17, in
clause 15, page 7, line 22, at end insert 
 'and are to be reviewed by the Lord Chancellor at least at five yearly intervals to consider the effect of inflation on these allowances.'.
 Again, I can be quite brief. The amendment is intended to probe the Government on lay justices' allowances. In a debate earlier this morning, I referred to the debt that we all owe the lay magistracy for their dedication. Requiring consideration of allowances at least every five years—one could express that as once a Parliament—would be no bad thing. It is important to encourage people to continue to volunteer for the vital role of justice of the peace. At least reviewing their out-of-pocket expenses every five years would assure anybody who became a JP and provide useful assistance. I am sure that the Treasury mandarins have told the Minister not to concede the point under any circumstances, but it is well worth probing.

Christopher Leslie: I have not spoken to any Treasury mandarins in my short time in my current post, although I may well seek to do so at the prompting of the hon. Gentleman. He is seeking to amend the clause, which relates to the allowances regime available for those who are magistrates, which provides a useful opportunity to record the gratitude not only of the Government but of the whole of Parliament for the immensely valuable work undertaken by magistrates. They do not do it for allowances, but deserve compensation for the sacrifices that they make in fulfilling their roles.
 The clause is substantially the same as the existing power under the Justices of the Peace Act and will largely allow the Lord Chancellor to pay and determine allowances. They include allowances for the cost of travelling to and from the place where duties are performed, subsistence allowances for any specified period during which they are required to be away from their normal place of residence, and financial compensation for loss of earnings or social security benefits, or for additional expenditure incurred in the performance of duties. 
 The amendment would require the Lord Chancellor to review allowances every five years. That provision is not needed in the Bill. First, having a specified time span between such reviews introduces a matter of detail into the Bill that is not appropriate. Secondly, the levels of allowances are in any case reviewed annually, so five years would probably be too long an interval. On that basis, I hope that the hon. Gentleman will feel that the amendment is not needed and will withdraw it.

Nick Hawkins: It is useful to have a record of the fact that the Minister recognises, as all hon. Members do, the importance of the work of lay magistrates. I did not really expect him to accept the amendment, but felt that it was important to have the debate, so I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the 
 Bill.

Andrew Miller: I am grateful to the Minister and I will take his thanks back home to Mrs. Miller, who is a magistrate of some 20 years standing.
 The breadth of the magistracy in the area in which I live concerns me because it is supposed to represent the whole of the community. Over recent years, it has become more difficult to recruit suitable candidates, particularly people from manual occupations, because of the problems of release from work. Some of the bigger employers in the north-west used to wear as a badge of pride their habitual release of people from work to carry out such functions. Recruitment has become more difficult as employment units have become smaller. In small and medium companies, someone with a particular occupation might be the only person doing a certain job. 
 I recognise that there is no easy solution to that problem. Part of the solution is ensuring that lost-earnings compensation is kept up to a sensible level. Over the years, lost-earnings compensation has tended to be a miserly sum not in keeping with modern well-paid jobs. I ask my hon. Friend the Minister carefully to examine how we can maintain the balance of the bench while addressing some of the difficult problems concerning release to undertake duties such as those of the magistracy. I appreciate that the issue of release is covered in employment legislation, which is another Department's responsibility, but it may be sensible for the Minister to acquaint himself with that legislation to try to find a working balance, so that the problem, which is probably more acute in some parts of the country than others, is dealt with.

Christopher Leslie: My hon. Friend raises an extremely interesting issue. I hope that he will pass on my best wishes to Mrs. Miller and thank her for her work as a magistrate in his constituency.

Andrew Miller: Just outside.

Christopher Leslie: Just outside my hon. Friend's constituency. He asked how we can encourage magistrates from diverse backgrounds to come forward to reflect society as a whole, which we want to see. I understand that the magistracy is relatively representative in comparison with other parts of the judiciary. For example, roughly equal numbers of men and women become magistrates, which is welcome.
 I should like to make two points to my hon. Friend. First, the existing earnings-loss compensation already recognises those justices who are self-employed as opposed to those who are not, and the changing nature of industry and employment in society. Secondly, it is time that we had a national strategy for the recruitment of lay magistrates, and I will look to announce such provisions shortly. We must aim to target employers and under-represented groups more thoroughly. We must also examine the allowance structure to see whether it affects people volunteering to be magistrates. I hope, however, that my hon. Friend the Member for Ellesmere Port and Neston will recognise that the clause is necessary to continue the good, existing arrangements. 
 Question put and agreed to. 
 Clause 15 ordered to stand part of the Bill. 
 Clause 16 ordered to stand part of the Bill.

Clause 17 - Chairman and deputy chairmen: selection

David Heath: I beg to move amendment No. 122, in
clause 17, page 8, line 40, leave out 
 ', or a person acting on his behalf,'.

Eric Illsley: With this it will be convenient to discuss amendment No. 123, in
clause 17, page 9, line 10, leave out 'experienced' and insert 
 'assigned to and acting as'.

David Heath: This is a probing amendment. Who is this person acting on behalf of the Lord Chancellor who puts in his first appearance in subsection (3)? The Lord Chancellor is not only a person, but a Department. Anyone with authority in the Department forms part of the personage of the Lord Chancellor, so why do we need to specify an additional person only in this instance in the Bill? The Minister may be able to enlighten me about why that person must be empowered to act on his behalf in this particular function.
 Amendment No. 123 makes a slightly more substantive point. Subsection (5)(c) sets out the rules for a contested election for the chairman or deputy chairman of the local justice area, and deals with the franchise for any such election. The terms in which the paragraph is couched are unnecessarily open to misinterpretation and dispute. Subsection (5)(c) states: 
''the election is made by those experienced as lay justices in the local justice area''.
 That term is open to various constructions. I should not like to determine who is an experienced lay justice rather than simply a lay justice. At what point does the term ''experienced'' come into play? 
 I would have thought, and my amendment would ensure, that the appropriate requirement is for someone to be assigned to and to act as a lay justice in the local justice area for which the election is held. The meaning of anything expressed more vaguely than that is open to challenge, and I cannot understand why the subsection is couched in those terms. The Minister may tell me that there is a very good reason why a lay justice must be an experienced lay justice, in which case he may be able to tell me by what criteria that experience is to be judged.

Christopher Leslie: I am grateful for the hon. Gentleman's amendments, although I may not want them to be accepted. However, they are part of my own education about current processes, and it has been quite interesting to consider some of the points that his amendments have prompted.
 On amendment No. 122, the clause provides for the magistrates of local justice areas to elect from their number a chairman and one or more deputy chairmen, and confers a rule-making power on the Lord Chancellor as to how that will operate. Subsection (3) makes provision for the Lord Chancellor, or a person nominated by him, to authorise a lay justice to 
 continue to hold office as chairman or deputy chairman to hear specified proceedings. That would enable the chairman or deputy chairman to continue to preside over the court to hear a specified, partly heard case. 
 Amendment No. 122 would remove the express provision that ensures that the Lord Chancellor may delegate his power under the clause. There may be a need for such a power to be exercised at short notice. For example, if it suddenly becomes clear that a case will overrun, there can be no guarantees in such circumstances that the Lord Chancellor will personally be available. Therefore, arrangements for delegation clearly need to be in place to ensure that the administration of justice is not undermined. 
 The hon. Member for Somerton and Frome asked an interesting question about the powers and which person they are delegated to. The secretary of commissions has delegated powers from the Lord Chancellor—there is a civil servant to whom much of these powers can be delegated. As a matter of law, specific statutory authority is not generally required for a Minister to delegate his function to a civil servant in his own Department. That is known as the Carltona principle, after the case in which it was established. However, clarification of the provision is necessary to put the matter beyond doubt because it relates to the appointment of magistrates. The people who drafted it felt that it was worth while explicitly to state that it was possible to delegate on these particular matters. 
 Amendment No. 123 would amend the provision in clause 17(5)(c). It would remove the possibility of providing in rules that only magistrates with experience in a local justice area can vote in a contested election for a chairman. 
 The clause re-enacts those parts of the Justices of the Peace Act that relate to bench elections. It could be used to prevent someone from voting in a contested election if they have been assigned to the area only the day before and are not au fait with its local dynamics—at least that is what it says in my note. However, I have subsequently scribbled that the current rules do not restrict the right to vote on the ground of experience. We do not enact the rules at present, so we do not have the set of regulations in place, and I can tell the Committee that we have no intention at the moment of changing the rules to insert such an experience qualification.

Andrew Miller: The first part of my hon. Friend the Minister's explanation is logical and stands up to examination, but I have a worry about the use of English in the clause. That
''the election is made by those experienced as lay justices''
 could be interpreted in such a way that people such as my hon. Friend the Member for Lewisham, East could participate in the election. The Minister needs to make it clear that the supplemental list is excluded.

Christopher Leslie: My hon. Friend is particularly eagle-eyed. I have sought assurances about that, and I have been told that people on the supplemental list are excluded.
 Given my comment about not having any intention at present of excluding such lay justices, I hope that the hon. Member for Somerton and Frome will withdraw the amendment.

David Heath: I am grateful to the Minister for those explanations. He agreed that there is no legal impediment to devolving the responsibility within the Department to a civil servant: subsection (3) simply makes that explicit. I accept that, and I will not pursue the matter further.
 On the second point, the explanation was a little threadbare in places. I think that the Minister knows that. Simply because the previous enactment said something does not necessarily mean that that is the right way to cater for any eventuality. If the Committee can make improvements, it is sensible to do so. 
 When we are establishing the franchise for a general election, we say that we give the vote not to people who are experienced at living in a constituency, but to the people who live in a constituency. It is very odd to put that term in there. I accept that it will probably have little effect in practice, but it begs the question: if it can be misconstrued, why put it into statute?

Christopher Leslie: As I said, I welcome that the hon. Gentleman has flagged up the matter. I was not aware of that provision. I will look more closely at the amendment to see whether there is any scope for change because his point is reasonable, although we have not enacted any regulations under the provision, and I do not intend to do so.

David Heath: I am grateful to the Minister. On that basis, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 17 ordered to stand part of the Bill. 
 Clauses 18 to 20 ordered to stand part of the Bill.

Clause 21 - Duty to consult lay justices on matters affecting them etc.

Amendment proposed: No. 31, in 
clause 21, page 10, line 34, at end insert 
 ', and shall take into account the views of lay justices in any local justice area before making any changes regarding that local justice area, and in particular shall not allow any court building in any local justice area to be closed if the lay justices believe that location needs a court to continue to operate there in the interests of local justice, regardless of Lord Chancellor's Department circulars and guidance.'.—[Mr. Hawkins.]
 Question put, That the amendment be made:—
The Committee divided: Ayes 5, Noes 10.

Question accordingly negatived. 
 Clause 21 ordered to stand part of the Bill.

Clause 22 - Appointment etc.

Nick Hawkins: I beg to move amendment No. 33, in
clause 22, page 10, line 39, at end insert— 
 '(1A) Before making a recommendation under subsection (1), the Lord Chancellor shall consult the lay justices of the local justice area to which it is intended that the District Judge may be assigned.'.
 It must be sensible for the Bill to require that, before a recommendation about who is to be a district judge is made, the lay justices who will be working with him should be statutory consultees, as it were; they should have a part to play in the decision making. We hope that the Government will agree that that would be sensible. As I experienced in my years at the Bar, the way that Crown court judges heard appeals from magistrates courts with lay justices sitting either side of them was an important part for those concerned of developing a working relationship in the administration of justice. Senior magistrates got greater experience by sitting with Crown court judges. 
 If the different parts of the judicial system are to work properly together, surely it is a good idea for lay justices to express a view on who will be appointed as a district judge. That is a small point, and I do not want to take up too much of the Committee's time with it, but I hope that the Minister will understand that the amendment is a genuine attempt to improve the Bill by including the requirement that lay justices be consulted. I will listen with interest to the Minister's response.

Christopher Leslie: The amendment would require the Lord Chancellor to consult lay justices before the appointment of the district judge to the local area, as the hon. Gentleman has set out. The intention is that the views of local benches and advisory committees will be sought by the Lord Chancellor before any assignment is made. However, a requirement to ensure that lay justices are made aware of any issues that may affect them is already set out in clause 21, which we have just ordered to stand part of the Bill.
 In some circumstances, there may be an urgent need for the appointment of a district judge to meet local needs. The amendment could be an unnecessary constraint should there be such an urgent need. Requiring the Lord Chancellor to consult would unnecessarily fetter powers and cause delays, and we do not want to constrain him in that respect, as he is responsible for the efficient and effective deployment of judicial resources. 
 We are keeping provisions to appoint to a particular area without consultation, if the Lord Chancellor considers that necessary. Lay justices should not be singled out for consultation. We want to bring the criminal courts closer together. The views of professional judiciary, such as the resident judge and the presiding judges, might also need to be taken into account. At present, district judges are appointed without the requirement for consultation, and that works well. The usual arrangements for discussing appointments in the normal way will be honoured. I 
 hope that the hon. Member for Surrey Heath recognises that to introduce such a rigid constraint to the clause is not desirable.

Nick Hawkins: It is helpful to hear some reassurance from the Minister. I know that concerns are sometimes expressed, not least by the hon. Member for Hendon (Mr. Dismore), who is not on this Committee, about secret soundings. I see the Government Whip nodding—on many occasions in the Chamber, and no doubt elsewhere, she has heard the hon. Gentleman wax lyrical on that subject. Nevertheless, the Minister's reassurances are of some help. We do not want to constrain consultation, but it is wise for consultation to be wide whenever there are judicial appointments. In light of the Minister's comments, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

David Heath: May I ask the Minister a simple question about the appointments procedure for the various types of justices of the peace? Under clause 22, the process is clearly laid out:
''Her Majesty may, on the recommendation of the Lord Chancellor, appoint a person . . . to be a District Judge''.
 Clause 10 states: 
''Lay justices are to be appointed for England and Wales by the Lord Chancellor by instrument on behalf and in the name of Her Majesty.''
 Clause 24 states, in dealing with deputy district judges,
''The Lord Chancellor may appoint a person'',
 and there is no reference to Her Majesty, despite the fact that a deputy district judge has exactly the same functions as a district judge. Why is there a difference? I presume that there are historical reasons for it, rather than any difference in functions under the Bill. It is time that we sorted out such things and had a consistent method of appointment. The judicial appointment process has a degree of internal logic, at least in terms of where the fount of authority lies—all people who act in a judicial capacity are answerable to the Crown—so why in some instances is the Lord Chancellor allowed to act on his own?

Christopher Leslie: The clause provides for the appointment by the Lord Chancellor of district judges, and for qualification requirements, payments of allowances and removal from office. The hon. Member for Somerton and Frome has discovered the traditional barrier in terms of the level at which appointments are delegates of Her Majesty. All appointments are made in the name of the Crown, and they follow the normal arrangements of seniority. Obviously, the more senior members of the judiciary are appointed directly by Her Majesty. There has been an historic and traditional delegation to the Lord Chancellor to deal with the greater volume at less senior ranks. Hence there is a difference between clause 10 and clause 22(1). That is the reason why there is no direct requirement for Her Majesty's personal involvement in those matters, but
 all such appointments are made in the name of the Crown. I hope that that helps.

David Heath: I do not want to pre-empt discussion of a later clause. However, is the Minister saying that a deputy district judge is of lower seniority than a lay justice despite the fact that they are both able to act in the capacity of district judge?

Christopher Leslie: My understanding is that a district judge is what used to be called a stipendiary magistrate. Therefore, there is a difference between the district judge and the deputy. The difference between this clause and the one that we shall discuss shortly concerns the volume of appointments, which previously determined the cut-off point for the Lord Chancellor delegating such appointments. It is straightforward that that should be the level at which the Lord Chancellor's direct appointment, delegated from the Crown, comes into effect.

Stephen Hesford: Is it not a distinction without a difference? The process is exactly the same. The form of the words is different for the reasons that my hon. Friend the Minister has given.

Christopher Leslie: If my hon. Friend will allow me, I shall stick with the form of words that I have used. They form the bedrock of the strong case that I have made.

David Heath: I want to clear the matter up to avoid further debate. Clause 24 does not specify that when the Lord Chancellor appoints a deputy district judge, he does it, as is stated in clause 10,
''by instrument on behalf and in the name of Her Majesty.''
 In fact he does, because he is a Minister of the Crown and acting under its authority. Why is that explicit in clause 10, but not in clause 24?

Christopher Leslie: My understanding is that the Lord Chancellor makes appointments under clauses 10 and 24, but that Her Majesty makes the appointments under clause 22. The distinction is based on seniority—I do not wish to use the phrase pecking order, although others might wish to characterise levels of seniority thus. That is why the Lord Chancellor has a direct input into these matters. The current arrangements deal with the appointments that come under clause 22. I hope that the Committee will agree that that is relatively straightforward, and that the clause will stand part of the Bill.
 Question put and agreed to. 
 Clause 22 ordered to stand part of the Bill. 
 Clause 23 ordered to stand part of the Bill.

Clause 24 - Deputy District Judges (Magistrates' Courts)

Question proposed, That the clause stand part of the Bill.

David Heath: Before the Minister has a chance to read any further advice he might have received, why do the words
''by instrument on behalf and in the name of Her Majesty.''
 not appear in this clause?

Christopher Leslie: The hon. Gentleman might be testing the patience of the Committee. I explained previously why, in respect of a deputy district judge, the words that he seeks are not set out. As my explanation has been fairly robust, I am reluctant to fall back on the requirement to write to hon. Members. The reason for the wording is the difference in seniority between a deputy district judge and a district judge. That is why Her Majesty makes the appointments under clause 22. It is self-explanatory. If I am missing the point, will the hon. Gentleman clarify it?

David Heath: I am sorry. I do not want to labour this, but the Minister is missing the point. He has persuaded me that the district judge has a very important position and must be appointed directly by Her Majesty with the advice of the Lord Chancellor. He has not yet persuaded me that the deputy district judge should be appointed under the fiat of the Lord Chancellor with no reference to an instrument in the name of Her Majesty. That is a necessary part of the appointment of lay justices. There must be a reason for that other than simple omission. What is it?

Christopher Leslie: Appointments of deputy district judges are normally made for what might be regarded as emergency business reasons so as to make appointments swiftly and to enable someone to step into the shoes of the district judge for urgent and specific needs. In those circumstances, it is not felt necessary to have an appointment made specifically by Her Majesty, which is why such matters are delegated to the Lord Chancellor. With that strong explanation, I hope that the hon. Member for Somerton and Frome will desist from pursuing the matter.
 Question put and agreed to. 
 Clause 24 ordered to stand part of the Bill. 
 Clauses 25 to 26 ordered to stand part of the Bill.

Clause 27 - Justices' clerks and assistant clerks

Nick Hawkins: I beg to move amendment No. 34, in
clause 27, page 12, line 23, after '2(1)', insert 
 'to be clerk of a local justice area'.

Eric Illsley: With this it will be convenient to discuss the following amendments:
 No. 37, in 
clause 27, page 12, line 24, at end insert 
 'appointed to serve on one or more local justice areas.'.
 No. 35, in 
clause 27, page 12, line 28, leave out 'or'.
 No. 36, in 
clause 27, page 12, line 29, at end insert 
 'or 
 (d) is appointed with the agreement of the chairman and deputy chairman of the local justice area.'.
 No. 38, in 
clause 27, page 13, line 1, at end insert 
 'appointed with the agreement of the clerk of the local justice area.'.

Nick Hawkins: I shall be brief. The crucial amendment is amendment No. 36, which requires the agreement of the chairman and deputy chairman to the appointment of the justices' clerk. The rest of the amendments are connected with that. We feel that it is important that the chairman and deputy chairman are required to be involved in the designation.
 Amendment No. 38 is also important. It suggests that an assistant clerk should be appointed only with the agreement of the clerk to the area. It would be helpful if that were also made clear in the Bill. I am sure that such an appointment would happen in practice only if the justices' clerk were happy. I hope that the Minister understands that we are genuinely trying to improve the provisions for consultation and involvement so as to improve the Bill. I shall listen with interest to his response.

David Heath: I rise briefly to support the hon. Member for Surrey Heath. I can see a strong rationale for this nationalisation—as it were—of the justices' clerks, but it is desperately important to maintain the local connections between the justices' clerk and the bench that he or she supports. We should also maintain the confidence of each one in the other. Anything that adds to that confidence is to be encouraged, and the hon. Gentleman's amendments will help in that process.

Christopher Leslie: I shall firstly address amendments Nos. 34, 37 and 38, and then I shall look separately at amendments Nos. 35 and 36.
 Amendments Nos. 34 and 37 would require the Lord Chancellor to appoint a justices' clerk to particular local justice areas, under clause 27(1). The amendments are unnecessary because, under subsection (3), the Lord Chancellor must assign each justices' clerk to one or more local justice area. The assignment offers the right link between the clerk and the area in which they work. If the amendments were intended to ensure that the appointment would tie the clerk even more closely to a specific area, our view is that that would be undesirable. It would reduce much of the flexibility that the provisions would introduce. 
 Amendment No. 38 would require the Lord Chancellor to obtain the agreement of the justices' clerk of a particular local justice area before designating a member of staff of the new court agency as an assistant to that clerk. We feel that the amendment is undesirable in terms of managing civil service human resources, because nothing in current legislation requires the agreement of local justices clerks before assistants are appointed. Clerks will be civil servants—as, usually, will be their assistants—so the usual practice with civil service appointments, and who approves them, will apply. The new courts agency will hire assistants; the employer will not be the justices' clerk. 
 It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order. 
 Adjourned till this day at half-past Two o'clock.